2. Procedural Questions Related to the Counterclaim

2.1 Jurisdiction of the Sole Arbitrator

2.1.1 The jurisdiction of the Sole Arbitrator with regard to Respondent's Counterclaim depends on whether the Agreement was validly terminated by Respondent effective June 30, 1999 . . . If the termination did not take effect on this date, the delivery and subsequent payment at issue were made pursuant to the Agreement.

2.1.2 As discussed in greater detail below, because the Sole Arbitrator is of the view that the termination by Respondent could only have become effective at the end of 1999, the subject double-payment of September 1999, which as such is not disputed by Claimant, is considered to have been made pursuant to the Agreement and, therefore, is covered by the arbitration clause.

2.1.3 The jurisdiction of the Sole Arbitrator for the Counterclaim is therefore properly exercised here.

2.2 Authorisation of the Counterclaim by the Sole Arbitrator Based on Art. 19 ICC Rules

2.2.1 The Sole Arbitrator agrees with Claimant that, pursuant to Art. 5 para. 5 ICC Rules, Respondent should, in principle, have filed its Counterclaim with its Answer to the Request for Arbitration.

2.2.2 Art. 19 of the ICC Rules, however, provides the Sole Arbitrator with the discretion to authorise Respondent to submit its Counterclaim even after the Terms of Reference have been signed and approved by the Court (Schäfer/Verbist/Imhoos: Die ICC Schiedsgerichtsordnung in der Praxis, Bonn 2000, p. 55).

2.2.3 Accordingly, if the Parties do not agree on the admissibility of a new claim . . . the Sole Arbitrator must decide this issue. Art. 19, sentence 2 ICC Rules lists certain criteria that the Arbitrator shall consider when making such a decision.

As an initial matter, the Arbitrator must consider the nature of such new claims or counterclaims. Specifically, the Arbitrator must examine whether the new claims or counterclaims have a connection with the set of facts on which Claimant bases its Prayers for Relief (Schäfer/Verbist/Imhoos, op. cit., p. 132). If the Counterclaim is based on the same agreement and the same set of facts, it must be admitted even at an advanced stage of the Arbitration.

The Sole Arbitrator should also consider the stage of the Arbitration as well as other relevant circumstances. In essence, this means that the authorisation of a new claim or counterclaim should not lead to an improper delay of the arbitration proceedings (Schäfer/Verbist/Imhoos, op. cit., p. 132 s.).

2.2.4 As explained under para. III/2.1 above, the Sole Arbitrator considers the subject double-payment to have been made pursuant to the Agreement. The Counterclaim is directly related to this same Agreement and thus shares a close factual connection with Claimant's Claims. Any delay of the arbitration proceedings by the Counterclaim can further be disregarded because the Counterclaim as such has been accepted by Claimant (see Claimant's Submission . . .).

Based on Art. 19 ICC Rules, the Sole Arbitrator will therefore consider Respondent's Counterclaim even though its filing was technically untimely pursuant to Art. 5 para. 5 ICC Rules.

2.2.5 The Sole Arbitrator would further like to note that the mere increase in the damages sought pursuant to a claim based on facts that have been brought forward in due course-as done by Claimant several times with regard to its Prayer for Relief No. 2-is possible until the proceedings have been declared closed pursuant to Art. 22 ICC Rules (Schäfer/Verbist/Imhoos, op. cit., p. 130). The latter situation does not implicate a case of Art. 19 ICC Rules (Craig, Park & Paulsson: Annotated Guide to the 1998 ICC Arbitration Rules, 1998, p. 121).'